This blog is for discussion of everything judicial: nominees, judges, the confirmation process, judicial philosophy, court decisions, constitutional issues, judicial activism. The views expressed here are those of the individual bloggers and do not necessarily represent the views of the Committee for Justice.

March 06, 2013

Guns & Lessons Learned from Halligan

The Committee for Justice congratulates GOP Senators for
remaining united today to defeat controversial D.C. Circuit nominee Caitlin
Halligan on the Senate floor, where cloture failed by a vote of 51 YEAs to 41 NAYs.Special thanks to South Carolina’s Lindsey
Graham, whose vote was considered in doubt, for contributing to the 41 nays.

Halligan’s hostility to gun rights was the single biggest
factor in her defeat. As Gun Owners of America said in a letter of opposition
this week, “Halligan’s public hatred for firearms was only matched by her
[anti-gun] zealotry inside the courtroom."For details on Halligan’s disturbing record, see our earlier press
release.

Gun rights have become a pervasive issue in the judicial confirmation
process.It was the key issue in
Halligan’s defeat and it’s been on the front burner since the Sotomayor confirmation
battle, where nearly every senator in both parties criticized, defended, or
tried to counterbalance Sotomayor’s bad Second Amendment record in explaining
their vote on confirmation.

“[With] the Supreme Court’s 2008 [Heller] decision recognizing the Second
Amendment as an individual right … the Justices transferred the theater of war
from legislatures to the judiciary. … That’s why … gun owners – their fate tied
to the selection of judges in the wake of Heller
– [have become] a potent part of the coalition advocating … for judges who
strictly interpret the Constitution.”

Newtown has not
changed things

Democrats hoped and the media speculated that the national
reaction to the Newtown shootings would make Halligan’s campaign against
firearms look more sympathetic, thus boosting her chances of confirmation.They were wrong. On Halligan’s first cloture
vote in December 2011, she fell 6 votes short.She fell 9 votes short on the second cloture vote today. Both times,
only one GOP senator – Murkowski (R-AK) – voted for her.

Why did Newtown fail to soften concerns about Halligan’s Second
Amendment record? We suspect it’s both because the post-Newtown “fervor” for
gun control has been greatly exaggerated and because the prospect of new gun
control legislation has made GOP senators more sensitive to the Second
Amendment records of judicial nominees who, if confirmed, will determine the
constitutionality of any new gun laws.

GOP senators committed
to higher standard for DC Circuit nominees

While explaining his vote against Halligan on the Senate
floor today, Sen. Mike Lee (R – UT) emphasized that

“The D.C. Circuit is arguably the most
important federal appellate court in our country’s judicial system, with
primary responsibility to review administrative decisions made by many federal
departments and agencies. It has also served in several instances as a
stepping-stone for judges who are later appointed to the Supreme Court. As a
result, the Senate has a longstanding practice of scrutinizing nominees to the
D.C. Circuit.”

In applying a higher standard to D.C. Circuit nominees, GOP
senators are following a precedent set during the Administration of George W.
Bush. Senate Democrats blocked several Bush
nominees to the D.C. Circuit, despite magnificent qualifications acknowledged
even by opponents. Those nominees included Miguel Estrada, who – Democratic
Judiciary Committee memos revealed –was blocked because Democrats feared he
would eventually become the first Hispanic Supreme Court Justice, and Peter
Keisler, who waited in vain for two years to get a vote in Sen. Leahy’s
Judiciary Committee.

Obama should make
a deal:

With four vacancies on the D.C. Circuit, President Obama has
an opportunity to not only solve the DC Circuit impasse, but also to begin healing
the Bush-era wounds that have made the judicial confirmation process so
contentious.If Obama is serious about
filling the four vacancies, he would be wise to make a package deal with Senate
Republicans that includes the nomination of one conservative to the circuit –
ideally Keisler or Estrada. The good will engendered by such a deal would make
confirmation of Obama’s other judicial nominees easier and would send an indisputable
signal of bipartisanship at a time when it’s badly needed in Washington.

Consider that George W. Bush did precisely what we’re
proposing, selecting Democratic judicial nominees three times to encourage
bipartisanship.Among President Bush’s
first batch of appeals court nominees were Barrington Parker, a Clinton appointee to a lower court, and Roger Gregory, an
unconfirmed Clinton
nominee. Another unsuccessful Clinton nominee, Helene White of Michigan, was nominated by Bush to the Sixth
Circuit in 2008.All three nominees were
quickly confirmed.